Legal Comment and So Forth

The Age of Consent

The Irish Times reported this morning that proposals are before cabinet to lower the age of sexual consent from 17 to 16. The proposals may be a hard sell, as sex and change are two things the Irish public are deeply uncomfortable with. However, any such discussion is welcome news, as the current age causes numerous problems, and not just for teenagers.

The Oireachtas Committee on the Constitutional Amendment on Children’s Rights recommended as far back as 2006 that the age be reduced to 16. The Irish Times reports that on that occasion, Enda Kenny opposed any change on the grounds that it would send a “wrong signal to our children about values and standards”. One imagines here a young couple in the throes of passion, suddenly stopping as one of them says “No. I love you, but Section 3 of the Criminal Law (Sexual Offences) Act 2006 says we have to wait, and An Taoiseach Enda Kenny agrees”.

16-year-olds have sex. They always have done, and while society may wish otherwise, they probably always will. The question then is not whether to do away with teenage sex (because the law cannot do that), but whether or not to make criminals of those teenagers. As the law currently stands, any male of any age who has sexual intercourse with a girl (or boy) of under the age of 17 is guilty of an offense, irrespective of the other’s consent. A girl, however, cannot be guilty of that offense. This, incidentally, creates an interesting lacuna, whereby there is no age of consent for gay girls.

Aside from the fundamental question of whether it is humane to make criminals of boys who engage in consensual sex with their girlfriends, there is the fact that the current law acts as a disincentive for teenage fathers to acknowledge their children, because in doing so they confess to a crime.

Where a sexual offense exists, there follows, under the Criminal Justice (Withholding of Information On Offences Against Children and Vulnerable Persons) Act, 2012, an obligation to report it to the appropriate authorities. Accordingly, anyone who becomes aware of a teenage pregnancy is committing an offense by not reporting it. In practice it is rare for young people to be prosecuted for engaging in sexual activity where they are of similar ages and where there is no complaint of coercion. This however is of no relevance to the 2012 Act, which makes no reference, in requiring disclosure of information, of whether a decision to prosecute is likely to be made. This has been a matter of grave concern to organizations and individual professionals working with very young parents.

A reduced age of consent is only one of a number of proposals before the cabinet. Another is is to allow a defence where a sexual act was consensual and between two people of “proximate age”. This would solve many of the problems mentioned above whilst still dealing with the question of sexual exploitation of teenagers by older adults. It is worth considering. What is not worth considering at all is the third proposal, which involves the DPP using discretion in bringing prosecutions. This effectively amounts to doing nothing and hoping that nothing bad happens. It provides no legal certainty, and doesn’t deal with problems arising from the 2012 Act. However, like any proposal that it involves doing nothing, it will probably find many advocates.

Critics will say that lowering of the age of consent simply moves the goalposts, and it is true that it will not solve every problem in this area. But at present there are too many teenagers who find themselves on the wrong side of the law. A reduction of even one year would remove many of them from criminal liability, and allow our authorities and social services to focus on the harder cases which remain on the other side of that line.